Fly On The Wall

A fly on the wall. That's all I wanted to be from the start. I was amazed that one lawyer allowed me to be a member of the jury, let alone two. I will never permit a lawyer on any jury in front of which I try a case. I explained that to the fellow members of my jury when they, sensibly, tried to make me foreman.

"There is a reason you don't want a lawyer on a jury. Whenever any legal issue comes up, or many issues related to the proceedings, people are likely to give deference to the opinion of a lawyer. They're more likely to be swayed. That's even more the case when you make the lawyer the foreman. He's likely to control the deliberations. It increases the risk that, instead of having twelve people combining their judgment and wisdom, you'll wind up with only one. I'd rather stay in the background and just give my input like everyone else."

"Come on, Jack. Do you think we're such sheep that we'll do whatever you say?" Sarah Reynolds, 38, teacher, housewife with two daughters. "We all have our own lives, make our own decisions. We're not going to be bulldozed."

"That's not what I said. I wouldn't want a doctor on my jury in a medical case. There are things he knows that the rest of the jury doesn't. They'll assume that if he understands something in a particular way, he's probably right, certainly more likely to be right than they are. I have full confidence in this jury. That's why I don't want to do anything that could remotely taint our decisions."

I think I allayed their concerns about my motives. We elected Vince DeMeo foreman. Vince was a pharmacist. I wouldn't have wanted him on a jury in a case rooted in drug reactions, but we were going to be deciding about attempted murder and, as far as I knew, he had no personal experience.

This was what I wanted: to see and understand the processes by which juries came to decisions so I could use that knowledge in the future when I was in front of a jury. Bless those two foolish men who were the beneficiaries of my not trying to control the process, not because they had made a wise decision to include me, but because it suited my own interests. That was how I felt when we sat down to start deliberations, but they took me through a series of surprises from which I learned more than I ever could have imagined.

My first surprise was the jury's view of the professionalism and effectiveness of the two attorneys. Heading into the jury room for deliberations, I thought they had done an admirable and workmanlike job. Adding together all the jurors who agreed with me, that made one.

The prosecutor, Stephen Bishop, had Garrett Crowley, the victim, on the stand explaining his near brush with death.

"Mr. Crowley, please tell us what happened on the afternoon in question."

"Well, I'll be the first to admit I ain't no angel. I was there with Irene in her bed engaged in relations. We were all like missionaries and I was on top. I don't hear nobody come in and so I'm assumin' we're all alone. All of a sudden, I hear this loud bang and splinters of wood are flyin' at me from the bedpost. So I raise up and turn around and there is her husband, Leon, with this huge f-, uh monster gun in his hand. And I'm payin' attention now. And he says, 'You've been chasin' around after my wife, and other wives, for a long time now and you've finally found a husband who won't put up with it.' And he raises the gun, points it at me and shoots. And he hit me in the chest. But for some reason, it doesn't go into me. And he's like all snotty like, 'You're a lucky man, a misfire. Do you think it could happen twice in a row?' And I saw what the first bullet did to the bedpost so I just jumped up and run the hell out of there without even tryin' to get my clothes. And I hear him hollerin' at me as I'm flyin' down the steps and I just grab my keys from the table by the front door and I whip out of there naked to my car and peel on out of there.

"And so later, I talk to Irene and she tells me he said he better not see me cause I know what he's willin' to do to me."

No objection? This is hearsay intended to prove the truth of a threat made against him. Is Leon's attorney awake?

Garrett furnishes a few more details and a little background and Leon's attorney finally gets involved.

"You said you were engaged in relations with Mrs. Granger. What were you doing, plotting to become relatives?"

"I'm only asking him about his smarmy affairs and his predatory behavior."

The judge is banging his gavel. Neither of these guys seem to have much interest in order in the court. They just want to go at each other. Mr. Granger's champion, Blake Blake, I swear that's his name, you can't make this stuff up, compares Steve Bishop to the Soviet secret police. He's trying to jail a man for trying to save his marriage. Steve, he wants to make himself more accessible to the jury than Stephen, says, "Blake Blake Blake will do anything to put a homicidal maniac back on the street." After a little more shouting they finally hear Judge Andy, that's how I think of him given the conduct of the trial, tell them that if they don't stop they'll both be in jail before the defendant. It's a nice turn of phrase, but the defendant is out on bail. Is he intimating to the jury that we should find him guilty at this early stage of the evidence?

Blake asks Garrett how many husbands were willing to put up with it and Steve launches into another objection, starting to tick off a list of what's wrong with the question, but Judge Andy cuts him off and warns Blake that he's very close to the line. Blake rephrases.

"Isn't it true that you often go after other men's wives behind their backs?"

"Objection. Beyond the scope of the direct evidence, irrelevant and immaterial."

"Your honor, I'm asking about acts of deception; acts which require lying, sneaking, sniveling, covering up the truth. Surely that kind of behavior, if confirmed by the answers of the witness, calls into question his reliability for telling the truth, which is one of the key things to be evaluated by this jury in deciding what happened and who to believe."

Steve doesn't have anything further to say. It sounds like a pretty good argument to me. I wonder what Judge Andy had for breakfast.

"Overruled." Probably a very healthy breakfast.

Blake gets to ask about three other married women before Judge Andy says we get the idea and he should move on. He asks Garrett if he ever thinks about the lives he is destroying, the homes he's wrecking and Steve objects. Blake continues to ask about the children he's destroying by his actions as if no objection has intervened. Steve accuses him of having no respect for the court. Blake accuses Steve of trying to make the world safe for scum of the gutter to perpetrate their shameful acts against decent, law-abiding citizens. Steve says Blake will work for any slime that has the money to pay him. Judge Andy, kind of slow on the uptake, finally tells both of them that the way this works is they make objections to him, and he rules on them.

It seems to me that Blake has gotten in some good points about the quality of the victim and he has put Steve off his game. But when we're discussing the case later in the jury room, it seems I've missed the point entirely.

"That Blake man was really nasty. I don't like him one bit. I don't trust a person who would hire a lawyer like that," says Mrs. Horowitz. She is not alone in her assessment of Blake Blake.

We're supposed to be evaluating the defendant, and I guess that is part of what's happening. We're taking the benefit of the doubt away from him because we don't like his lawyer.

"That other lawyer was pretty nasty himself," offers Mr. Cruz. "But I felt bad for him when that Blake guy got him so upset. He's just trying to enforce the law."

The jury wants lawyers to be nice and polite? This isn't the British judicial system. They mix it up politely and respectfully. We come at each other with everything we've got. It's supposed to be adversarial, but maybe we take that to mean "nasty". Big lesson number one: the jury is going to be more favorably disposed to the lawyer they like better, and therefore to his client as well. They're not thrilled about sarcasm and tone of voice either. Boy, am I going to have to change.

Irene gets to testify. Blake puts up token resistance, citing marital privilege. But Judge Andy says it is not a privileged marital communication when made in front of a third party you're shooting at. I thought the privilege didn't apply in front of a third party you're not shooting at as well, but I guess the judge didn't feel he had to address that hypothetical situation.

Irene confirms the veiled threat directed toward Garrett and says her husband threatened her as well. He told her, "Fool me once, shame on you. Fool me twice, who can say what will happen when an angry man owns a gun?" I'm beginning to like Leon Granger. He has some style.

Steve puts on a firearms expert who identifies the bullet that bounced off of Garrett as having come from Leon's gun. Steve asks him nothing about that obvious anomaly, but Blake has more curiosity on cross-examination. The witness agrees that is it unusual, there's an understatement, but that it has been "known to happen." I wonder how the rest of the jury will interpret this. "Known to happen," and the inevitable affirmative response to, "Is it possible," are really the equivalent of, "I seriously doubt it." But lawyers use them as if they reveal an epiphany.

The witness also testifies that a shot from a .38 revolver at that range is typically fatal. Steve apparently thinks he has done enough, and the prosecution rests.

Blake Blake calls Leon Granger and the fun really begins.

"Did you shoot Garrett Crowley in the manner he described?"

Steve breaks out a smile like the case is now over.

"Kind of. I shot, the bullet hit him, but it didn't penetrate."

"Did you plan to shoot him in this manner?"

"Yes, I did."

"Did you intend to harm him?"

"Certainly not."

Steve's smile is starting to change direction.

"Can you explain how you meant to hit him but not harm him?"

"I took .38 special ammunition and removed the bullets from the cartridges. I emptied out the powder, replaced the primer and put back a portion of the powder and reassembled the cartridge. I tested different weights of powder to make sure the bullet would exit the muzzle. From there, I tested different powder loads to find a point at which the muzzle velocity would not be sufficient for the bullet to penetrate a person. I attached pork chops which I had sliced thin, to a wood frame to simulate ribs and skin and muscle. When I determined the likely charge, I loaded some cartridges with powder and tested it with my Smith and Wesson .357 by shooting at a squirrel. If it didn't penetrate the squirrel, it wouldn't penetrate a person. I hit a squirrel and it squealed and ran off. I found the bullet on the ground where I had hit the squirrel and there was no blood so I knew I had a charge that could not penetrate the son of a bitch. I used the .357 with its five inch barrel because I wanted accuracy; I didn't want to hit the wrong place.

"The day I shot him, I used an untampered shell for that first shot into the bedpost to make them believe I had deadly loads. The second one was to scare him away. I didn't fire a third, though it wouldn't have penetrated him either. I made the comment to make him believe that if he kept it up with my wife, I would kill him."

"You said you used a Smith and Wesson .357, but you also said you used .38 ammunition?"

"The Smith and Wesson .357 is made to fire both kinds of ammunition."

"You put in a lot of effort to scare him. How did you come to be there at that time?"

"The idiot bragged he was nailing my wife. He bragged about when he was going to nail her again and a bartender heard him and told me about it. The jerk actually used the word 'nail.' Anyway, I target shoot and I'm already familiar with making my own custom ammunition. So I planned this out to scare him off. I also wanted to scare my wife. I wanted her to believe I'd kill her if she did it again, with him or anyone else. Unfortunately, I got prosecuted, so now everybody knows I'm a pushover. I guess I'll just have to settle for a divorce."

"Your witness." Blake could have elicited more detail. It was a good, if difficult to believe, story. More detail might have made it more believable.

"Mr. Granger, do you really expect us to believe that you intentionally shot Garrett Crowley point blank, but you never had any intention of harming him?" Steve's tone was condescending. I thought it was a colossal mistake. His innuendo and his mocking question could easily be defeated with a simple, "Yes." Then what? But Blake must have prepared him.

"Certainly. And if you doubt me, bring in the gun and shoot me with it."

Quite a bit of chatter erupted in the courtroom and Judge Andy had to gavel it away.

Steve was not a stupid man and he recovered much better than I would have. "It's easy for you to say that, Mr. Granger, since you know the Judge would never allow it."

"Is that a question? Have I lost all conception of the English language or is Mr. Bishop testifying without the benefit of taking the oath or having any actual evidence pertinent to this case." I thought Steve's tone was condescending, but Blake Blake made it sound courteous by comparison.

Steve started to argue that Blake was mocking him, which he was. Blake argued that Steve was taking inappropriate liberties, which he was. The judge argued that, well, we couldn't hear him because Steve and Blake were shouting at each other and ignoring him. The gavel put an end to that. He warned them both. They both proclaimed penitence, though you would have had to look under a rock to find their sincerity. It was as entertaining as a court show on TV.

Steve was not quite done with Leon. He had that look on his face, the one that says he's got a killer follow up question. That look is usually followed up with the stupidest question in the case. "You fired at his chest, but couldn't you just as easily have hit him in the throat or somewhere else that may have killed him?" No, it was probably the stupidest question I had ever heard in court.

"Hey, at that distance I could have circumcised the prick."

The judge finally got the courtroom under control and admonished us all to refrain from further outbursts. But I was looking at him when Leon made the statement. A quick puff of air expelled from his lips before he got himself under control. If he had been drinking at the time, he would have sprayed both attorneys and probably the first row as well.

Not many witnesses after that I got my opportunity to decline election as foreman.

Mrs. Horowitz ushered the jury to their first consensus: Blake Blake was really obnoxious. Steve Bishop was just unpleasant by comparison. "It's much harder to believe the evidence Blake's putting on when you know what a creep he is. I mean, doesn't it seem like he'd be willing to put on any kind of evidence that would help his case, even if it wasn't true?"

"I never thought of it that way," said Sarah Reynolds.

Neither had I, because it seemed a stupid way to think of it. How do I get these people to talk about the actual evidence? I needn't have worried.

"I think he deserved it. Hell, I think he would have deserved it if the bullet hadn't misfired. You don't be messin' around with married women. If I caught my wife like that, she'd be lyin' in a pool of his blood." Terry Robinson wasn't married, but if he does marry, his wife had best be faithful.

"That's not what happened," said Harriet Turner, the librarian. "The judge told us about this. It would be completely different if he walked in on them and shot him. That would be in the heat of passion, he said. This guy planned it out. I don't know if he did all that stuff with the bullets, but he knew when they'd be there and he had a plan. He could of stopped her if he wanted. But, no. He wanted to shoot the guy. Don't tell me! That's completely different."

Mr. Cruz agreed. "I don't know what I'd do. I'm not sure you really know until it happens. But this guy knew and he was waiting for them. That's premeditated."

Mrs. Horowitz couldn't leave Blake Blake alone. "Did you see what he was wearing? I mean I have no problem with spending a lot of money on clothes, you ladies know what I mean. But his suit and tie were so gaudy. I think he'd glow in the dark."

They discussed Steve Bishop's clothing and demeanor. He dressed just fine, but he was contentious enough that he might have fared badly with a less unpleasant opponent.

I was starting to feel nauseous. What kind of case did you have to put on to make these people pay attention to the facts? Around the time I was starting to despair, Vince DeMeo did what a foreman should: he started talking about the case.

"All that other stuff aside, and however much you believe a guy or the witnesses somebody calls, what we know for sure is that Leon knew that Garrett had been with his wife before and that he was going to be with her again. He made some kind of plan, and he surprised them and he shot the guy. Nobody disputes that. So it seems to me that what we have to decide is what he intended to accomplish by shooting him. Did he plan to kill him? Did he plan to scare him? What was he doing?"

"All that bullet stuff doesn't make sense to me," said Raymond Jackson. "I work construction and there's a lot of stuff you gotta know. But what kind of guy knows all that stuff about making bullets? You practically have to go to school to know all that. I think he just got lucky with that bad bullet misfire thing."

"He didn't bring in any evidence about the bullets or anything. He just told us what he wanted us to believe," said Mrs. Horowitz. "I kind of think he meant to kill the guy."

"I'd have meant to kill him." For Terry there was only black and white.

"Isn't there some kind of compromise?" said Sarah.

"They only gave us attempted murder. Why do you think they did that Jack?" asked Vince.

"So we couldn't find a compromise. If they had given us any kind of assault with this loser victim, we might or might not have convicted on the assault, but they knew there was no way we would find attempted murder. They wanted all or nothing because they believed we'd give them all."

"Well, he had it coming," said Harriet. "But that doesn't mean you can just go around shooting anybody you want. You walk in and catch them, that's another thing. You make plans and you surprise them, well, he meant to do it."

"I don't even know if this thing he's telling us about the bullets is possible," said Mr. Cruz. "I think maybe he made that stuff up. Maybe he read some story in a magazine or something."

"Why don't we take a vote and see where we are?" asked Vince.

He passed out slips of paper and we all wrote down guilty or not. Vince started reading them. "Guilty. Guilty. Guilty." He read it eleven times. He unfolded the final one. "Not guilty." "I know this is a secret vote and you don't have tell us, we can keep talking, but does the 'not guilty' want to identify himself or herself and tell us why?"

I raised my hand.

"Here we go," said Mrs. Horowitz. "Big shot lawyer."

"Does anybody not think the whole issue is whether he fixed up those bullets so they couldn't hurt Garrett?"

There was murmuring but nobody offered any contradiction.

"Well, I think we have conclusive evidence that he was telling the truth; that those bullets couldn't have hurt him."